Beginning the end at SMO

With the latest developments concerning the future of Santa Monica Airport (SMO), I’m willing to say that we’re at the beginning of the end. One way or another, the future of the airport will be sealed within two or maybe three years. I’m optimistic enough (I hope not foolish enough), to say that the end that we’re at the beginning of is the end of SMO as an airport.

So what’s happening? For one, Tuesday night the Santa Monica City Council will vote to close down aviation uses at SMO “as soon as legally permitted,” and with a goal of July 1, 2018. This action will be important, because formally deciding to close the airport will clarify the City’s position in at least two court cases. The council’s action, however, will not be the primary reason we’re at the beginning the end: merely saying something is so doesn’t make it happen.

More important to closing the airport was that last week the City lost an appeal at the Federal Aviation Administration. Yes, losing the appeal was good news. The appeal was of an FAA administrative decision that the City had to operate the airport until 2023 because of money it received from the FAA in 2003. The L.A. Times made a big deal about the City losing the appeal, saying that Santa Monica had “lost another round in effort to close” SMO, but in terms of the timeline to close the airport, in fact it was a victory for the City to get the FAA finally to make a decision, which the agency had continually delayed. The City should have lost this battle a year ago!

Now that the City has the decision, it can appeal it to a neutral forum, namely the Ninth Circuit Court of Appeal. Unfortunately the Ninth Circuit is backed up, and based on the experience with other SMO litigation it’s likely that the City won’t have a decision for at least 18 months. The City’s case is strong, however, as the FAA administrators had to stretch to rule against Santa Monica. I predict that the City will win this appeal.

Speaking of the Ninth Circuit, it’s mostly because of a Ninth Circuit ruling that I’m willing to predict that we are beginning the end. That was the decision back in May when a three-judge panel unanimously reinstated the City’s own case against the FAA. The City brought that case to have the courts declare that the City could close the airport notwithstanding a clause in a 1948 agreement under which the City agreed to operate SMO in perpetuity, but the trial judge in the case had dismissed the City’s complaint on procedural grounds. The City claims that the perpetuity clause is not enforceable; it’s impossible to read the Ninth Circuit opinion and believe that the judges disagree with the City.

As a result of the reversal on appeal, there will now be a trial on the merits, and as of last week there is a trial date: August 29, 2017. (See you in a year, on an Expo train to the federal courthouse in downtown L.A.)

Whoever loses at trial is bound to appeal, and so both the appeal of the FAA ruling and the City’s case against the FAA will grind on for at least two years. No doubt that’s why the City Council resolution to be voted on Tuesday calls for a goal of closing the airport July 1, 2018.

There are questions about what will happen in the meantime at the airport. Specifically, a number of anti-airport activists want the City to evict aviation tenants at the airport whose leases expired in 2015. In particular, the focus is on Atlantic Aviation, which is responsible for nearly all the jet traffic at SMO.

It’s hard not to sympathize with these activists and their arguments, since after a business loses its lease, that’s usually it. (No rent control for businesses!) But the City has walked a fine line on the leases—for good reasons, and to good effect. What the City has done is to take steps to reduce the profitability of the aviation businesses at SMO, and then negotiate with them to leave voluntarily. Primarily this has involved taking away lessees’ rights to grant subleases, which was a big source of profits. Using these strategies, which have included carrots as well as sticks, the City has caused two of the largest aviation businesses at the airport, Gunnell and Justice Aviation, to leave.

Originally the City’s caution with the leases arose from fear that that if the City evicted the aviation businesses, the FAA would seek an injunction, as it has in past litigation with the City, to freeze operations at SMO. In other words, the FAA would claim that the City was closing the airport de facto, and had to be stopped with an injunction.

So far the FAA hasn’t done that. We don’t know if the agency has held back because the City hasn’t given the agency grounds to do so, or because the agency is concerned that it would lose in court. We don’t know what would happen if the City evicts Atlantic, but certainly it would be better if Atlantic should choose to vacate as Gunnell and Justice have done.

The City now has another reason to be careful. Now that it has its cases where it wants them, in federal court, the City has to be cautious not to do anything that would annoy or anger the judges hearing the cases. Judges don’t like to be shown up. If a plaintiff is asking for relief from a judge, the judge doesn’t want to hear (from the defendant) that the plaintiff has gone off and taken its own action before the judge can make a decision.

As much as I wish we could wish the jets away, and turn SMO into a great park sooner, I have to take the side of caution and . . . patience.

Thanks for reading.

SMRR to members: go away

At the Santa Monicans for Renters Rights (SMRR) convention on Sunday a friend asked me if it was more fun attending the convention now as a regular member than as a candidate, referring to the fact that at the 2012 and 2014 conventions I was running for city council and going crazy trying to get endorsed. I said, no, it was a lot of fun being a candidate. The only thing I didn’t like about running for office was losing.

Which means that as a recovering candidate I have sympathy and good wishes for anyone who runs for office, especially for local office where there’s not a whole lot of power or glory that comes with winning. (Donald Trump being the exception that proves the rule—since with him, it’s all about power and glory, and therefore no sympathy from me!) So good luck to all the candidates—you’ll all need it.

As for the convention, I wrote last year about how SMRR was afflicted with “founders’ syndrome,” and nothing that happened Sunday indicated that the organization was getting over it. In fact, there were some obvious symptoms, beginning with the SMRR leadership’s mad desire not to allow the membership to decide whether to support or oppose Residocracy’s LUVE initiative.

What happened was that SMRR co-founder and Co-Chair Dennis Zane, running the meeting, allowed Residocracy’s Armen Melkonians the opportunity to begin the meeting with a motion for SMRR to endorse LUVE. Melkonians made an impassioned speech in favor of LUVE, and it looked like we might vote on his motion, but then Zane pulled the always-golden “substitute motion” parliamentary maneuver. Under Robert’s Rules, anyone can make a substitute motion and preempt whatever is going on. In this case the substitute motion was a “compromise” that Zane and other SMRR leaders wanted, namely a motion not to support LUVE combined with a promise to write a less extreme voter approval measure for a future election, said promise meant to be an olive branch to the neighborhood associations and other anti-development factions of Santa Monica politics.

Melkonians looked stunned when he realized that notwithstanding Zane’s giving him a featured speaking slot to extoll LUVE, Zane wouldn’t allow a vote on it. For what it’s worth, I agreed with Melkonians, and voted against the substitute motion. There should have been a straightforward vote (or votes) of the membership to decide whether SMRR should support, oppose, or take no position on, the most significant local measure that will be on the ballot this year.

The other obvious symptom of founders’ syndrome was a panic attack that SMRR Co-Chair Patricia Hoffman had when it appeared that her favorite candidate running for City Council, Planning Commissioner Jennifer Kennedy, would lose a third ballot for an endorsement to incumbent Terry O’Day. Hoffman, in support of a motion to dispense with the third ballot, exploded when telling the membership that she wanted to leave the slot open so that the Steering Committee could endorse Kennedy.

As it happened, Hoffman’s fears were unnecessary, as Kennedy survived the third ballot when members who had supported Melkonians (who hadn’t qualified for the third ballot) switched to her, but the whole episode had already turned ugly when the crowd booed the ham-fisted attempt to take away their vote. Now the Steering Committee is free to endorse Kennedy, as it did in 2014 after Kennedy came in fifth in the membership voting.

Speaking of 2014, the biggest difference in Sunday’s convention from the one in 2014 was that in 2014 more than twice as many members attended. At the 2014 convention, 451 members voted in the first round for City Council, while this year the number was 198. I haven’t figured out why attendance cratered. Candidates begging their supporters to attend is what drives attendance at the convention, but for reasons unknown the candidates this year took a laid-back attitude.

While most political organizations want more members, I suspect that SMRR leadership feels good about the decline in membership. Why? Because what motivates their fear of the members making decisions is that ever since SMRR, in the ’80s, became a membership organization various groups have mobilized their members to join SMRR and vote en masse for their candidates and their candidates only. This “bullet voting” has often prevented SMRR from making endorsements at the convention (none were made in 2014). With fewer members (and well-respected incumbents), this wasn’t a problem this year: three council candidates, and full slates of candidates for school and college boards, received endorsements on first ballots.

SMRR leadership has an idealized view that members should be “pure” SMRR and not associated with other groups, but that’s unrealistic and not consistent with American democracy going back to the Federalist Papers or de Toqueville. Americans like to organize themselves. In his introductory remarks convening the convention Zane recalled that before it was a membership organization, SMRR was a “coalition.” Memo to Zane: it still is, and that’s a good thing because people organize around current issues, and that organizing is what can keep an organization like SMRR relevant.

Problems occur when leadership plays favorites. Reflecting their own age-appropriate views as well as their fear of losing elections, SMRR leaders typically favor the anti-development factions in SMRR, even when these anti’s overtly scorn SMRR’s legacy of achievement and good and progressive government. At the convention, the only candidate who spoke negatively about government in Santa Monica, which has been dominated by SMRR for decades, was Melkonians. Yet rather than allow a clean vote on LUVE, which would have repudiated LUVE and Residocracy, the leadership came up with its compromise measure to appease the extreme anti-development group. It serves the SMRR leaders right that their attempt to appease seems, based on what’s been reported in the press (“SMRR “Non-Support” on Slow-Growth Ballot Measure Prompts Anger Among Backers“), to have increased Residocracy’s anger at SMRR.

Memo to Patricia Hoffman: the Residocracy folks aren’t going to vote for Jennifer Kennedy no matter what SMRR does, not when they can bullet vote for Melkonians.

Meanwhile, progressive elements in Santa Monica politics and in the SMRR coalition, including union workers and young advocates for housing and the environment, get short shrift bordering on disrespect from SMRR leadership. Progressive groups around the country are doing everything they can to attract young and diverse new members, for the next generation of leadership, but when these folks show up at SMRR, SMRR leaders seem annoyed more than anything else.

“Get off my lawn!”

Thanks for reading.

LUVE: What we don’t need now

When voters submit an initiative to enact a law, Section 9212 of the California Elections Code authorizes the relevant legislative body to commission a report analyzing the impacts the initiative would have, including, specifically, its impact “on the use of land, the impact on the availability and location of housing, and the ability of the city to meet its regional housing needs.”

The State of California considers those issues to be important, and so does the Santa Monica City Council. When presented last month with Residocracy’s “Land Use Voter Empowerment” initiative (LUVE), the council requested a Section 9212 report, which it received from city staff last week. The council will consider the report at its meeting tomorrow night.

The 65-page report is negative about LUVE, which would, in general but with some exceptions, require voter approval of new construction taller than 32 feet. The report finds not only that LUVE would have many negative unintended consequences, such as making post-earthquake reconstruction problematic, but also that LUVE would have a negative impact on its ostensible intended consequences, such as preventing worsening traffic congestion and gentrification.

The report also explains why LUVE, or most of it, would be unenforceable under state law, because state law does not allow voter approval of administrative decisions, and how legislation Gov. Jerry Brown is about to get passed streamlining approvals of certain urban residential developments will likely override much of LUVE.

For all that, the scope of the Section 9212 report does not extend to the two most damning arguments against LUVE: one, that there is no overdevelopment crisis in Santa Monica that requires the drastic solution of voter approval over development, and two, that it would be a nightmare to have to vote on development decisions.

As for point one, for more than 40 years, with little resort to ballot box government, Santa Monica has closely regulated development. Ever since the public rose up in the ’70s and elected new city councilmembers to stop the destruction of the Pier and the building of an island in Santa Monica Bay, there has been a consensus that the City needs to control development. While land use politics in Santa Monica can be remarkably bitter, the differences Santa Monicans argue over are small when looked at objectively, or regionally, i.e., compared to growth in the surrounding City of L.A., L.A. County or southern California as a whole.

Contrary to Residocracy’s rhetoric, Santa Monica has intensified its regulation of growth over the past 20 years. A recent analysis showed that since 2003 only about an average of 48,000 square feet of net new commercial space has been built in Santa Monica annually; compare this to the 9,000,000 square feet of office development that was approved in the ’80s and built by the mid-’90s.

Residential development has also been modest. Since 2003, Santa Monica has seen an average net increase of about 230 new housing units a year. Given that Santa Monica has nearly 50,000 units in total, this increase is only about half of one percent per year. This is not massive overdevelopment. It’s fear mongering to claim, as Residocracy does, that LUVE is needed to prevent future overdevelopment.

This doesn’t mean that there won’t be controversies about development in the future. The City is in the process of making decisions for the next 20 or 30 years of development in downtown. Vigorous debate is healthy and to be expected. But based on the history, there’s no reason to suspect that planning staff and our Planning Commission and City Council can’t make intelligent decisions that balance the pros and cons of new plans and proposals.

As for the second crucial argument against LUVE, do we really want to vote on development proposals and planning documents? Is ballot box government a good idea?

Before you answer that question, consider that in November there will be 17 statewide measures on the ballot. Things aren’t yet settled, but it looks like there will be at least a dozen county, city, or school measures also on the ballot, including several crucial tax measures. It’s been a century since the “Progressive Era” reforms brought the initiative and referendum to California. Was it ever intended that voters would have a ballot with 30 measures to vote on?

For every great initiative like the Coastal Act, there are dozens of nightmares. It’s not that initiatives don’t sometimes respond to real problems, but the nature of an initiative is to remove the flexibility to respond to change that is one of the virtues of representative democracy. Initiatives also have a multiplier effect, since they typically require more and more votes on matters that used to be routinely left to elected representatives. California government, for instance, at all levels has been hobbled by the restrictions of Prop. 13 and 218 on the power to tax. Weakening government has not made government better or improved the lives of Californians.

LUVE wants to do the same thing with the power to plan. According the City’s Section 9212 report, currently there are 12 proposals to build apartments in Santa Monica and 10 of them would require voter approval under LUVE. Assume that even half the developers decided to brave the process instead of taking the easy way out and building low-slung retail or offices, which are quite profitable (but which, by the way, generate more traffic than housing). Would you want to vote on five apartment buildings in 2018? How many campaign mailers can your mailbox hold?

Let’s say you do want to vote on them all—are you ready, willing and able to review the hundreds of pages of documentation and plans necessary to conscientiously evaluate each project?

Thanks for reading.

A map from the Section 9212 report (fig. 4, page 26) showing all the buildings (residential in green, commercial in pink) in Santa Monica that would have required voter approval if LUVE had been in effect when they were built.

A map from the Section 9212 report (fig. 4, page 26) showing all the buildings (residential in green, non-residential in pink) in Santa Monica that would have required voter approval if LUVE had been in effect when they were built.

Moving goal posts and new players: the plight of anti-development politicians

After last night’s City Council meeting Councilmember Sue Himmelrich might understandably have a “no good deed goes unpunished” feeling. You see, Himmelrich proposed that council direct staff to prepare a ballot measure for November that would be an alternative to Residocracy’s LUVE initiative. Himmelrich, whom Residocracy endorsed when she ran for council in 2014, proposed a measure that would give voters the right to approve large projects, but one that would not be as draconian as LUVE and therefore (presumably) have a better chance of passing. Residocracy, however, slammed her and her proposal even before the meeting began.

On Monday, on Residocracy’s Facebook page, Residocracy’s Tricia Crane derided Himmelrich’s proposal, calling it “an attempt to confuse voters,” and one that showed the “desperation” of councilmembers (presumably Himmelrich) “to retain power and defeat the LUVE initiative.” Ouch. (Later Crane, I suppose to make sure her sentiments were not limited to Facebook users, forwarded the Facebook exchange to her neighborhood group, Northeast Neighbors—that email must have gone viral, because even I received it.)

Crane was right about the potential confusion. (If not about Himmelrich’s motivations, which seem sincere.) As pointed out last night by, of all people, Residocracy-nemesis Councilmember Terry O’Day, having two similar measures on the ballot would create confusion. If the anti-development vote were split, probably both would lose. The cynical thing would have been if the councilmembers opposed by Residocracy had supported Himmelrich’s motion. (Neither they nor any other councilmembers did, and the motion died without a second.)

As for Crane’s attack on Himmelrich, the first-term councilmember is not the first anti-development politician to engage the wrath of anti-development constituents feeling scorned. Even Councilmember Kevin McKeown, over many years the most consistent anti-development voice in Santa Monica politics, is now enduring nasty attacks because of his opposition to LUVE.

There’s a pattern. History repeats. (Not sure just when the attacks might have been tragic, but certainly, with the attacks on McKeown and Himmelrich, we’ve now reached farce.) For reasons that I’ll get into below, at some point anti-development politicians and their anti-development constituents tend to part ways. Consider what happened the first time Santa Monica elected a City Council majority consisting of members who had all been elected with anti-development support.

That was in 1999, when after a special election Richard Bloom joined councilmembers McKeown, Michael Feinstein, and the late Ken Genser, all of whom had been elected with anti-development support. In short order the four proceeded to replace the entire Planning Commission with anti-development activists drawn from neighborhood associations. Long-term planning in the City came to a stop, as the new commissioners, led by former councilmember Kelly Olsen, browbeat planning staff, whom they accused of being in the pocket of developers.

But the anti-development majority began to fall apart in 2001 when Genser, Santa Monica’s original anti-development councilmember, voted in favor of Target; the other three were opposed. Then in 2003 Feinstein infuriated the anti-development side by voting against reappointing Olsen to the Planning Commission. Not entirely coincidentally, Feinstein lost his bid for reelection in 2004.

As for Bloom (today, of course, Assembly Member Bloom), his views evolved as he became more involved with social and environmental issues. Although Bloom’s original political base was among anti-development homeowners in Sunset Park, by 2005 or so he had become a strong supporter of housing and economic development. By 2008, both Bloom and Genser opposed the RIFT initiative, and were on the outs with their original anti-development supporters.

So why do anti-development councilmembers and their constituents become estranged? The anti-development side will tell you it’s because all politicians are corrupt and ultimately get bought off by developers, but empirically that’s not true. The real reasons are more complex.

Briefly put, when it comes to the goals of the anti-development side, as soon as one goal is achieved, a new, more extreme goal is created. In Santa Monica, where everyone involved in politics wants to regulate development to some extent (we’re all Democrats, right?), this means that a politician elected on a platform advocating one level of regulation soon finds, after voting for regulating development at that level, that some aggrieved constituents want him or her now to adopt higher levels of regulation, levels that the politician might not be comfortable with, whether because he or she is aware of legal restrictions or simply because he or she doesn’t want to go that far in preventing change.

Consider what’s going on now. In 2004 City Council began the LUCE process, and responded to anti-development sentiment (i) by pushing nearly all new development into commercial and industrial districts comprising a small fraction of the City’s land area (a good idea) and (ii) by making nearly all significant development discretionary (not such a good idea). In 2010 the LUCE was finally adopted—with the support of the anti-development community.

But when, a few years later, City staff was drafting the new zoning ordinance, suddenly there was a new target: the largest projects allowed under LUCE, discretionary projects called “Tier 3.” Last year when the zoning ordinance finally came to a vote, the new anti-development majority (McKeown, Himmelrich, Tony Vazquez and Ted Winterer) voted to eliminate nearly all Tier 3 projects.

McKeown, Himmelrich, Vazquez and Winterer retained, however, LUCE’s Tier 2, the zoning standard that allows the continued building of the kind of housing (apartments over ground floor retail) that has been the standard in Santa Monica since the ’90s. Moreover, the four have voted several times to approve more of these apartments. These votes have infuriated the extreme anti-development element represented by Residocracy, i.e., those Santa Monicans who insist that new apartments are incompatible with the character of a city that is 70% renter. Which is why Residocracy has now brought forward LUVE, which would for all practical purposes eliminate Tier 2.

So there you have it, anti-development mission creep: limit development to commercial areas and make nearly all of it discretionary; eliminate Tier 3; eliminate Tier 2. If you don’t follow us every step, you’re a paid stooge for developers.

There’s another factor, too: the constant entry of new people into the political process from the anti-development side, people who don’t necessarily have knowledge of the anti-development battles that preceded their involvement. Ten years ago, after more than 25 years of anti-development politics (and policies, many good, to control growth), the new group in town was the Santa Monica Coalition for a Livable City. SMCLC, acting as if no one had ever noticed traffic before, came up with the RIFT initiative in 2008, but SMCLC now takes a backseat as Residocracy drives the agenda. It’s telling that the three key leaders of Residocracy—spec mansion developer Armen Melkonians, North of Montana realtor Kate Bransfeld, and Tricia Crane, who formerly directed her activism to the School District’s special education programs—did not participate in any significant way in local development politics until three or four years ago.

It’s this combination of shifting goal posts and new players, not developer money, that causes the inevitable disconnect between anti-development politicians and their original anti-development base.

Thanks for reading.

Housers, united by LUVE

So far I’ve avoided writing about Residocracy’s “Land Use Voter Empowerment Initiative” (LUVE), but now that the Santa Monica City Council will be discussing its merits in a few weeks (at the council’s July 12 meeting) I’ll stop avoiding the unavoidable.

What’s most interesting to me as a political observer is how Residocracy has, with LUVE, fractured the anti-development coalition that has been so successful over the years in setting the Santa Monica political agenda. This is most clearly evidenced by the fact that Council Members Kevin McKeown and Ted Winterer, two of the most articulate voices skeptical of development in Santa Monica (and two of the city’s most popular politicians), are both strongly opposed to LUVE.

Both McKeown and Winterer were strong supporters of the “Residents Initiative to Fight Traffic” (RIFT), the measure that the Santa Monica Coalition for a Livable City put on the ballot in 2008. But LUVE is quite different from RIFT.

RIFT only limited commercial development, which put RIFT squarely in the mainstream of anti-development politics in Santa Monica going back to 1981 when Santa Monicans for Renters Rights (SMRR) first took power in Santa Monica and the City became, to borrow from historian William Fulton (The Reluctant Metropolis), the first city to challenge the Los Angeles growth machine. In fact, there were many of us who opposed RIFT only because of its bringing ballot box government into the planning process, not because of its goal of reducing commercial (particularly office) development.

While it is true that during the ’80s SMRR-dominated city councils enacted laws making it harder to build housing (and that during that time little housing was built), paradoxically the purpose of the laws was to save housing. The idea was to preserve existing apartments by making it more difficult and less profitable to tear them down to build condominiums. When the City was sued on the basis that these impediments to building housing violated state law, and lost, the City’s response was brilliant: it maintained, even strengthened, the obstacles to building in residential districts, but satisfied state law by making it easier to build housing in commercial districts (particularly downtown).

I well remember in the mid-’90s, when the City Council was considering the new downtown zoning, listening, at a meeting of the Ocean Park Community Organization, to SMRR leader Dennis Zane try to persuade the late anti-development leader Laurel Roennau why it was good to build housing downtown. (The strategy of protecting neighborhoods by focusing development in commercial zones later became the organizing principle for the LUCE updates to Santa Monica’s general plan.)

Indeed, housing, particularly affordable housing, has always been central to SMRR’s agenda, and has always been popular with Santa Monica voters. When SMRR first challenged the growth machine in the ’80s, one of its goals was to require office developers to pay for affordable housing. In 1990 voters passed Measure R, which requires that 30% of the housing in the city be affordable to low and moderate income households. In 1999 Santa Monica became one of the few cities where a majority of voters approved the building of affordable housing.

The big battles over development since the ’80s have been about commercial development, not housing. There was the Civic Center Plan, which went to the ballot in 1994, and where most of the controversy concerned the expansion of RAND’s offices and RAND’s entitlement to build 250,000 square feet of spec offices. Then there was Target in 2001, a 100% commercial project. Now we have fights over hotels that are essentially commercial developments even though they include housing in the form of condos. Until Residocracy came along, there was little controversy (and that primarily about design issues) over the housing built in Santa Monica since the new zoning in the ’90s, nearly all of which was built downtown.

The recent Paper Mate battle is another case in point: the problem with the project was its adding hundreds of thousands of square feet of offices. At the council meeting where the project was approved, Ted Winterer made a motion to approve it if the developer turned another (the fourth) of the project’s five buildings into housing; Tony Vazquez seconded the motion. If the developer had jumped up and said Yes!, the outcome could have been different. The project might have passed on a 6-1 vote; if so, SMRR would have been less likely to have supported Residocracy’s referendum to overturn the approval. (The vote might even have been 7-0; although McKeown had not said that he would have accepted the total size of the project, he, along with other many other opponents of the project, such as Zane, had said emphatically that what he wanted at the site was housing, not more offices.)

The proponents of LUVE know that they have a problem politically with the housing issue. In their statements and writings in support, they deny that LUVE would prevent housing from being built, and claim that LUVE would protect existing housing. The measure itself is drafted to present the illusion that it supports housing development: it exempts from the 32-foot height limit 100% affordable housing projects (but only up to 50 units, and with the demise of redevelopment it’s almost impossible to build 100% affordable projects anyway), and 77 properties identified as suitable sites for housing in the City’s general plan (but only up to a floor-to-area ratio (FAR) of 2.5, which would likely mean that a landowner or developer would instead opt for a by-right commercial development flying under the 32-foot limit).

Given this history, it shouldn’t be surprising to see this break between Residocracy, whose leaders have made clear their belief that Santa Monica does not need more housing, and others who are skeptical about growth, but who nonetheless know that we need to house the next generation. They read the papers, and nearly everyday there’s an article about California’s housing crisis.

Although I often quote the Freud phrase, “the narcissism of small differences,” to explain how people largely in agreement can nonetheless have bitter disputes over the iota’s of their disagreements, it’s dismayed me that in Santa Monica people who largely share the same communal values nonetheless continually find themselves in noisy and acrimonious disputes when it comes to development. (And I’ll include myself.)

But as I said, it shouldn’t be surprising that “housers” in Santa Monica have largely united against LUVE. It’s like the Hillary/Bernie fight. At times bitter, but as Paul Begala said, “nothing unites the people of Earth like a threat from Mars.”

Thanks for reading.

Making laws fuzzy doesn’t make politics more clear

I’ve been traveling most of the past month, to places as far away as medieval Spain or as close as the contemporary music scene in Ojai. It’s hard to get Santa Monica out of one’s mind, however. I left town the day Expo opened, but I was reminded of it, and certain controversies involving it, when in Spain I kept seeing trains in the middle of streets and plazas.

Here’s a picture of the tram stop that’s in front of Seville’s cathedral — evidently Spanish people don’t need fences to keep them from walking in front of trains. I can’t imagine that they are that much smarter than we are.

Seville, Spain.

Seville, Spain.

Meanwhile, the big news here while I was gone was that Residocracy’s “LUVE” initiative qualified for the ballot. Tonight the City Council will have the opportunity to either adopt the initiative or put it on the November ballot, but based on the alternatives set out in the staff report, the likely scenario is that the council will postpone action while City staff prepares an analysis of the initiative. (But don’t expect environmental review. In the great exception to the California Environmental Quality Act (CEQA), initiatives, even if they are passed by a city council instead of being voted on, don’t have to undergo environmental review. So don’t expect this sweeping law to the get the review that one apartment building would get.)

LUVE will get the attention tonight, but there is another potential ballot measure on the council agenda that should not be ignored. It’s a proposal to amend the Oaks Initiative.

Readers will remember that last year City Council hired the attorney John Hueston to investigate, along with the Elizabeth Riel/Pam O’Connor case, how the Oaks Initiative was enforced (or not enforced) in Santa Monica. Oaks, passed in 2000, prohibits city officials, including council members, from receiving benefits, including campaign contributions, from parties who have received benefits voted for or conferred by the official. City Attorney Marsha Moutrie had refrained from having her office enforce the law because of her concerns about conflicts of interest she and the office would have.

Hueston, in the aftermath of his investigation, made various recommendations concerning Oaks, some of which make sense. He pointed out that the Criminal Division of the City Attorney’s office was “walled off” enough from advising city officials to be able to investigate Oaks complaints without having conflicts of interest, and he had various ideas about cleaning up ambiguous language in Oaks.

There’s one suggestion he made, however, that crosses a line into legal recklessness. This was his suggestion that the trigger for when the “no contribution” period would begin would be not when a benefit was conferred, but when the potential person to receive the benefit would apply for the benefit, or even, in some circumstances, when the future applicant even begins to consider applying for the benefit. (The “twinkle in his eye” moment?)

When Hueston proposed this at the council meeting when he presented his report, he was questioned by Council Member Gleam Davis about how this could be enforced when it was unclear how city officials such as council members (who are not involved in processing applications) could know when the no-benefit period would start. Hueston’s answer was to say that that was the idea, that as former prosecutor he liked it when rules were fuzzy, because that gave prosecutors more flexibility.

Wow. There’s no rule of law when laws are vague.

As for the purpose of Oaks, this change would do nothing except shift more campaign spending into independent campaigns, known elsewhere as PACs, and make our politics less transparent, not more. Speaking as a former candidate, the limits on campaign financing that we have in Santa Monica, including Oaks, have not made our politics more pure.

Running for office is expensive in Santa Monica since it’s hard to reach voters other than by mail, and with campaign finance limits, it is virtually impossible for a candidate to raise enough money to run for city council in Santa Monica. When candidates can raise money to run their own campaigns, they not only can control their message, but they are also responsible for that message and can be held to account for the sources of their funding. When candidates can’t raise money, candidates with their own money to spend (and when I ran I was in that category) have an advantage.

Instead of individual campaigns controlled by candidates, Santa Monica’s politics revolve around independent expenditure campaigns, which include Santa Monicans for Renters Rights (SMRR) and other, smaller groupings of residents, unions, and business-funded campaigns. Anyone can contribute unlimited amounts to these campaigns, regardless of Oaks or any other campaign finance laws, and these campaigns choose their own slates, often linking candidates who are otherwise not likely to be linked.

Hueston’s proposed change to Oaks would make things worse.

Thanks for reading.

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Please note: before the City Council’s meeting tonight (i.e., at 5:30), there will be a community vigil in front of City Hall to be held in the aftermath of the Orlando attack.

Santa Monica Airport: wheels of justice speed up a bit

The wheels of justice have ground slowly when it comes to the Santa Monica Airport, but yesterday a unanimous three-judge panel of the Ninth Circuit Court of Appeals kicked them into a higher gear with a ruling that upended the balance of power between the City of Santa Monica and the Federal Aviation Administration (FAA).

The unsigned, seven-page “Memorandum” decision reinstated the City’s lawsuit, filed in 2013, that asked that the federal courts declare what the City’s rights are to the land at the airport. In 2014 a district judge dismissed the case, ruling that the City had filed the action too late, i.e., after the applicable 12-year statute of limitations had expired. He ruled that the clock had begun to tick in 1948. That was when the City and the federal government signed a post-World War II “Instrument of Transfer” (IOT) that returned control of the airport to Santa Monica, but which contained a clause requiring Santa Monica to operate the airport in perpetuity. If the City didn’t operate the airport, then the IOT said that property the feds were transferring to the City would “revert.” In the lawsuit, Santa Monica argues that the perpetuity clause is unenforceable or, alternatively, that it was superseded by a subsequent agreement, in 1984, that allowed the City to close the airport after July 1, 2015.

In its appeal of the district court’s dismissal of the case, Santa Monica argued that it could not have known in 1948 that the land, as opposed to other property, could be subject to reversion, and that the 12-year period began in 2008, when the FAA first notified the City that if Santa Monica did not continue to operate the airport, the feds could claim the land.

It took almost two years for the City’s appeal to reach oral argument in the Ninth Circuit. Since hearing the case in March, however, the appeals court has acted fast. In yesterday’s ruling the court, echoing questions that one of its members, Judge Jacqueline Nguyen, had asked the federal government’s lawyer during oral arguments, found that the statute of limitations issue could not be decided separately from the substantive merits of the case. Specifically, whether the City was on notice in 1948 of a federal claim that would trigger the start of the 12 years depended upon whether the IOT threatened the City’s ownership of the land, as opposed to being applicable only to other property transferred from the feds to the City. Since the essence of the City’s case is that the IOT did not transfer ownership of the land, the court ruled that the scope of the IOT had to be determined before the statute of limitations issue could be determined. The court sent the case back to the district court for trial.

The Ninth Circuit judges went even further, however, and that’s where the ruling fundamentally changes the litigation landscape. While the court said it could not determine from the record what the City knew or should have known in 1948, and left that to the trial court, the judges were not satisfied with simply remanding the case. Instead, the court went out of its way to prospectively validate the City’s arguments that the 1948 perpetuity clause did not apply to the land, and prospectively invalidate as irrelevant the primary evidence the FAA has put forward as support for its argument that the perpetuity clause in the 1948 agreement is enforceable.

As for the City’s arguments, the court emphasized, by quoting three times from the IOT, that the IOT, including its penalties for violating the perpetuity clause, only applied to property transferred in the IOT. Pointedly, the judges reminded everyone that neither side disputed the fact that the City had owned title to the land when it leased it to the federal government during the War.

The evidence that the FAA has put forward to prove that the IOT did apply to the land consists chiefly of actions and legal opinions from the ’50s, ’60s and ’70s. For each case, the Ninth Circuit panel suggested reasons why the evidence could not prove that the parties understood the IOT to mean that the City could lose the land if it didn’t operate the airport.

The three judges, in effect, laid out the case the City should make at trial.

When asked by the Santa Monica Lookout News for the FAA’s reaction to the Ninth Circuit decision, a representative said that the agency was reviewing it. I imagine that this review will be accompanied by some consternation because, at the least, the FAA is now going to find itself in a place, an impartial federal court, where it did not want to be, litigating a question, the present day validity of the IOT, that it did not want to litigate.

On the other side of the coin, the decision validates a strategy that the City decided on a 2013 (disclosure: a strategy that I had advocated for previously), namely to seek a federal court declaration of its rights before doing anything that might precipitate a stronger reaction from the FAA.

Thanks for reading.

(The Ninth Circuit decision can be accessed here. It’s worth reading.)